Court grants two cases

Posted Mon, February 25th, 2013 9:54 am by Lyle Denniston

The Supreme Court agreed on Monday to try to clarify further when the rights of an accused are violated because of faulty advice from a defense lawyer about a plea bargain, and separately took on a case testing the tactics prosecutors may use to counter a claim that the accused lacks the mental capacity to commit a crime. Both cases will be heard and decided at the Court’s next Term, starting in October.

In another significant action, the Court refused to hear a new test case on the constitutionality of the long-standing, flat ban on corporations’ use of their internal funds to contribute directly to a federal candidate. Without comment, the Court denied the case of Danielczyk v. United States (12-579). That case involved donations to the senatorial and presidential election campaigns of Hillary Rodham Clinton.

Two Justices — Sonia Sotomayor and Stephen G. Breyer — in an opinion by Sotomayor sharply criticized prosecutors and lawyers involved in a Texas drug case for the way they responded to a prosecutor’s snide comment about African-Americans and Hispanics and drug-dealing. “I hope never to see a case like this again,” Sotomayor wrote.

The two newly granted cases are Burt v. Titlow (12-414) and Kansas v. Cheever (12-609). In both cases, the issues are raised by state officials, protesting lower court rulings that favored the rights of the defendants.

The Burt case involves a Troy, Michigan, woman, Vonlee Nicole Titlow, who was convicted of second-degree murder for the suffocation of her uncle, Donald Rogers, in August 2000. While she was being held in jail after she had pleaded guilty under a plea bargain, but before she was sentenced, a sheriff’s deputy told her she should not have pleaded guilty if she believed she was innocent.

Titlow got a new attorney and claimed innocence, and the lawyer told her to withdraw her guilty plea, thus nullifying the plea bargain. She was facing a sentence of seven to fifteen years on a manslaughter charge, and the attorney said that was too long. Titlow was then tried on the more serious charge of murder, and was convicted of second-degree murder. She was then sentenced to twenty to forty years in prison.

The Sixth Circuit Court ruled that her Sixth Amendment right had been violated by the attorney’s advice to withdraw the guilty plea, an action which led to her receiving the longer prison sentence for murder. That is the issue that state officials challenged in their petition to the Supreme Court. The key issue is the proof that must be offered to show that the accused would have accepted the offer if the advice from the defense lawyer had not been faulty. The case basically turns on the scope of two Supreme Court rulings last year enhancing the rights of the accused in the plea-bargaining context — Lafler v. Cooper and Missouri v. Frye.

In the Cheever case, Kansas officials raised the issue of what prosecutors may do when an accused individual puts before a jury a defense of mental incapacity to commit a crime. The state contended that prosecutors should be allowed to counter that claim by presenting the testimony of a psychiatrist who had examined the individual’s mental health, under court order.

Scott D. Cheever, a Kansan, was charged with capital murder in federal court for the shooting death of a sheriff who had gone to a house near Hilltop, Kansas, in search of Cheever on illegal drug charges. His lawyer filed a notice that Cheever would rely on a defense of intoxication, and would call witnesses to testify that this made him unable to form the intent to commit murder. The federal judge ordered a mental evaluation of Cheever.

The federal case was later dismissed, and earlier murder charges under state law were reinstated because, in the meantime, Kansas’s death penalty law had been restored. At the trial, Cheever testified, admitting that he had killed the sheriff, but relied on a defense of intoxication. He called a witness to buttress that claim. In response, the prosecutors called to the stand the doctor who had examined Cheever in the federal case, and that doctor testified that Cheever was not impaired at the time of the crime.

He was convicted of murder, and given a death sentence for that crime, and was convicted of other charges and given a 737-month concurrent sentence for those. Cheever appealed to the Kansas Supreme Court, which ruled that the admission of the testimony of the doctor violated Cheever’s Fifth Amendment right against self-incrimination.

Challenging that conclusion in the Supreme Court, Kansas officials contended that there is a split in lower courts on the issue.

The Court’s denial of review of the campaign contributions case against two business executives came less than a week after the Court had granted review of another donations case that potentially will test the scope of Congress’s power to put ceilings on contributions to candidates for Congress and the presidency. That case, McCutcheon v. FEC (docket 12-536), involves the two-year cap on donations to federal campaigns by individuals.

The federal case against businessmen William P. Danielczyk, Jr., and Eugene R. Biagi — a case that has not yet gone to trial — involved the total ban, going back to a 1907 law, on the use of corporations’ internal funds to make donations directly to federal candidates. At one point during lower court proceedings in that case, a federal judge had ruled the flat ban on corporate donations to be unconstitutional, under the Supreme Court’s 2010 decision in Citizens United v. FEC. The judge found a violation of the two executives’ First Amendment rights, but that was overturned by the Fourth Circuit Court.

The Supreme Court’s refusal to hear the appeal by Danielczyk and Biagi means that the case will now return to lower courts, either for trial or for a plea. In their petition, the two contended that the Citizens United decision requires that the flat ban on corporate contributions be struck down. As usual, the Supreme Court offered no explanation in denying review.

The comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review inCalhoun v. United States(docket 12-6142). The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark. It should not.”

At the trial of Bongani Charles Calhoun, who is African American, the issue of his intent came up when he was being cross-examined by a prosecutor. Calhoun had contended that he did not know what was going on when a friend arrived at their hotel room with a bag of money, and had said that he did not want to be there.

Here is what Sotomayor’s opinion said happened next: “The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, ‘You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you — a light bul doesn’t go off in your head and say, This is a drug deal?’ ”

The two Justices went on to criticize not only the prosecutor, but also Calhoun’s defense lawyer for failing to object, as well as Justice Department lawyers for their response. When the case was on appeal to the Fifth Circuit Court, Sotomayor wrote, “the government failed to recognize the wrongfulness” of the prosecutor’s question, calling it “impolitic.” Belatedly, Sotomayor wrote, the U.S. Solicitor General had called the remark “improper” as the case unfolded in Supreme Court filings.

Sotomayor commented: “It is deeply disturbing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century.”

The two Justices did not dissent from the denial of review, concluding that the Court was right because Calhoun and his lawyer had forfeited the arguments they could have made in lower courts and in their Supreme Court petition.

The Court also denied review of a significant new test case on what prosecutors must prove in order to get a conviction for carrying a machinegun during a crime, in order to get extra prison time added to a sentence. The issue in the case of Burwell v. U.S. (12-7099) was whether the government, in charging that an individual used a machinegun during a crime, must prove that the individual knew that the gun was automatic. The D.C. Circuit Court ruled that that kind of proof was unnecessary.

The petition by a Washington, D.C., man, Bryan Burwell, contended that his case raised directly an issue that the Supreme Court had left open in 2010 earlier when it ruled that the government had to prove that a gun was an automatic as an element of the crime, not as a sentencing factor leading to a longer prison term (U.S. v. O’Brien). That case did not settle whether there also had to be proof that the individual knew that the weapon was a machinegun.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.